Supreme Court Digest

Supreme Court Digest

This column summarizes all decisions of
the Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

Criminal Law

The defendant was sentenced to life in prison without the possibility
of parole under Wisconsin's "two strikes" statute. See Wis.
Stat. § 939.62(2m). This statute requires imposition of a life
sentence without parole or extended supervision if the state alleges and
proves both that the defendant has committed what the statute defines as
a "serious child sex offense" and that the defendant has a prior
conviction for such an offense. In this case the defendant was convicted
of repeated acts of sexual assault against the same child in violation
of section 948.025(1), and he had a prior conviction for first-degree
sexual assault of a child.

The defendant attacked the "two strikes" law as violative of
substantive due process. He argued that the "two strikes" law is
unconstitutional because it is not rational to subject someone who has
committed two Class B felonies, such as child sexual assault, to life
imprisonment without the possibility of release while such a disposition
is not required for someone who has committed two Class A-felony
intentional homicides. [For Class A felonies the court must impose a
sentence of life imprisonment but has the discretion to determine
whether the defendant will ever be eligible for release, unless the
persistent repeater ("three strikes") provisions of section 939.62(2m)
are applied to the homicide offense.]

The supreme court framed the precise issue before it as whether the
"two strikes" law violates the Due Process Clause of either the U.S. or
the Wisconsin constitution because the law requires a greater penalty to
be imposed on an offender convicted of a second Class B-felony nonfatal
child sexual assault than the statutes require to be imposed on an
offender convicted of a second Class A-felony homicide offense.

In a decision authored by Chief Justice Abrahamson, the court
concluded that the defendant's constitutional challenge to the "two
strikes" law fails. "The legislature's interest in protecting the public
from child sexual assault offenders, a particular subset of offenders
with a perceived high rate of recidivism who victimize an especially
vulnerable segment of the population, makes it rational for the
legislature to impose a greater penalty on an offender convicted of a
second Class B nonfatal child sexual assault than on an offender
convicted of a second Class A homicide offense" (¶ 7).

In a footnote, the court indicated that the question was not before
it of whether this rationale would support the inclusion of other
nonfatal offenses in the "two strikes" law. See ¶ 27
n.37.

Justice Wilcox did not participate in this decision.

Criminal Procedure

Statute of Limitation - "Commencing" a Criminal Prosecution by
Complaint when Defendant is Already in Custody

M.K. was sexually assaulted on Dec. 5, 1992. Buccal swabs were taken
from the defendant in 1994 and, in 1997, his DNA profile was entered
into the State Crime Lab's databank. On Dec. 1, 1998, it was determined
that the defendant's DNA matched evidence from a vaginal swab obtained
from the victim on the date of the assault. On Dec. 4, 1998, the
district attorney issued a criminal complaint charging the defendant
with sexual assault and obtained a court order to produce the defendant
from a state prison where he was serving a sentence for an unrelated
crime. The order required the release of the defendant to the custody of
the sheriff for transportation to and attendance at an initial
appearance in court.

The initial appearance was held on Dec. 6, 1998. The defendant waived
his preliminary examination and, on Dec. 14, 1998, the district attorney
filed a criminal information alleging one count of second-degree sexual
assault. The defendant moved to dismiss the charge, arguing that the
six-year statute of limitation had expired. The circuit court denied the
motion.

In Wisconsin a prosecution for a felony must ordinarily be
"commenced" within six years after commission of the felony. Within the
meaning of the controlling statute, a prosecution has "commenced" when a
warrant or summons is issued, an indictment is found, or an information
is filed. See Wis. Stat. § 939.74(1). Applying this
statute, the court of appeals reversed the circuit court. SeeState v. Jennings, 2002 WI App 16. The court of appeals
concluded that this statute is quite precise as to which documents must
be issued, found, or filed to "commence" a felony prosecution: a
warrant, summons, indictment, or information. No mention is made of a
complaint or an order to produce.

In a majority decision authored by Justice Bablitch, the supreme
court reversed the court of appeals. It concluded, based on the
legislative history of section 939.74(1) and related criminal statutes
dealing with the commencement of criminal prosecutions and warrantless
arrests, that for statute of limitation purposes, a criminal complaint
is sufficient to commence a prosecution against an individual, like the
defendant, who is already in custody due to incarceration.

Perhaps most significant to the majority in reaching this decision
was the legislative history of section 939.74(1), which demonstrates
that the statute of limitation begins to toll with the earliest action
to commence criminal proceedings. In many cases, the earliest action is
the issuance of a warrant, as identified in section 939.74(1). However,
said the court, in a situation in which the suspect is already in
custody, the issuance of a warrant seems, at best, superfluous, since
the purpose of obtaining an arrest warrant is to take an individual into
custody. See ¶ 22.

"The legislature could not have intended the absurd result of
requiring the issuance of a warrant for statute of limitations purposes
under Wis. Stat. § 939.74(1) for an individual who is already in
custody. Consequently, we reverse the court of appeals and hold that
§ 939.74(1) does not trump Wis. Stat. §§ 967.05(1) and
968.02(2), which both provide that a prosecution may be commenced upon
the filing of a complaint" (¶ 23).

Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.

Jury Selection - "Anonymous" Juries - Hearsay

Tucker was charged with a drug-related offense. During jury
selection, the judge informed the parties that it was his practice to
use "numbers" instead of jurors' names in drug prosecutions. The
parties, however, had complete access to all juror information,
including the jurors' names; the order simply precluded on-record
references to the names. The jury convicted Tucker. She appealed, and
her appeal was certified to the supreme court.

The supreme court, in an opinion authored by Justice Bablitch,
affirmed. Succinctly stated, the court held that "if a circuit court
restricts any juror information, the court must make an individualized
determination that the jury needs protection and take reasonable
precautions to minimize any prejudicial effect to the defendant"
(¶4; see also ¶27). Although the trial court failed
to make such an individualized determination in this case (the judge's
determination was instead based on the class of offense, here, drug
related), the supreme court held that the error was harmless beyond a
reasonable doubt in light of the overwhelming evidence of guilt.

Tucker also argued that the judge erred by excluding a hearsay
statement by a witness to the effect that Tucker had "nothing to do with
the drugs." The supreme court held that the trial court properly
determined, however, that the witness's statement was not truly against
his own penal interest because he never actually inculpated himself
while exculpating Tucker.

Chief Justice Abrahamson concurred and also joined Justice Bradley's
separate concurrence. The Chief Justice wrote separately to explain that
the majority's harmless error analysis "misses the mark" because it
focuses too much on the defendant's guilt and "fails to assess whether
the fundamental constitutional rights of the defendant were violated"
(¶37).

Justice Bradley also concurred, but she disagreed with the majority's
harmless error analysis. She emphasized that this case did not concern
an "anonymous jury" but rather a restriction on how jurors could be
addressed on the record. She said that the majority also faltered by not
considering whether the defect constituted a "structural error," which
is not subject to harmless error analysis. Finally, Justice Bradley said
that shielding juror information also "contradict[s] the presumption of
openness that defines the American judicial system" (¶72).

Justice Sykes also concurred, arguing that the anonymous jury case
law does not apply in the first place to the "far more innocuous
practice of voir dire by number" (¶84), because this practice does
not "rise to the level of an encumbrance on the presumption of innocence
so as to implicate the defendant's right to due process" (¶86).

Family Law

Termination of Parental Rights - Notification Requirements under the
Indian Child Welfare Act

Petitions were filed to terminate a father's parental rights to his
children. The father filed several pretrial motions, including a motion
to dismiss for failure to notify the "Ojibwa Tribe in Marinette,
Wisconsin" of the proceedings. Alternatively, the father asked that the
proceedings be suspended in order for the government to provide notice
to the tribe. The father claimed that such notice was required by the
Indian Child Welfare Act (ICWA) because he has Indian heritage,
specifically, that his mother's ancestors were members of the
aforementioned tribe.

The circuit court asked the grandmother to supply all the information
she could about the children's Indian heritage. The district attorney
then provided all of the known information about the children's Indian
ancestry to the U.S. Department of the Interior. In sum, the grandmother
indicated that her own grandmother was born on an Indian reservation
somewhere in Canada around 1880 and later moved to Marinette, Wis. The
department responded that it was unable to determine the children's
Indian ancestry due to insufficient information on tribal
affiliation.

The father then made a motion in limine for an order requiring that
notice be sent to the Ojibwa Tribe in Marinette, as he had previously
requested. At the hearing the district attorney recounted his
substantial but unsuccessful attempts to locate such a tribe.
Ultimately, the circuit court denied the motion, concluding that the
authorities were not in a position to do anything more regarding notice
and that the provisions of the ICWA had been satisfied. Trial then
proceeded, and the court ordered the father's parental rights
terminated.

In a majority decision authored by Justice Bradley, the supreme court
affirmed the circuit court decision. The majority began its analysis by
observing that the ICWA contains procedural and substantive provisions
for involuntary child custody proceedings when an "Indian child" is
involved. Among the procedural provisions is a requirement that the
child's tribe be notified when the court knows or has reason to know
that an Indian child is involved. The ICWA defines an "Indian child" as
"any unmarried person who is under age eighteen and is either (1) a
member of an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe." 25
U.S.C. § 1903(4). The term "Indian tribe" means an Indian tribe,
band, nation, group, or community that is recognized as eligible for the
services provided to Indians by the U.S. Secretary of the Interior
because of its Indian status.

The circuit court had concluded that the information about the
children's ancestry was too sketchy to require further notice under the
ICWA, and that under these circumstances the notification provisions of
the ICWA had been satisfied. The supreme court agreed with the
Department of the Interior and the circuit court that the information in
this case was inadequate. However, unlike the circuit court, the supreme
court determined that because the information was insufficient to show
that the ICWA notice provisions even applied in this case, no notice was
required. The supreme court affirmed the order terminating the father's
parental rights.

Chief Justice Abrahamson filed a dissenting opinion.

Motor Vehicle Law

The defendant was charged with operating a vehicle while intoxicated
(OWI) as a third-time offender. To this charge the prosecution added an
allegation of habitual criminality under the general repeater statute
(Wis. Stat. § 939.62) because the defendant had a prior felony
conviction for attempted possession of THC with intent to deliver.

The defendant moved to dismiss the habitual criminality penalty
enhancer under section 939.62, arguing that addition of this enhancer
was improper because he already faced enhanced penalties as a repeat
offender under the OWI statute. The circuit court denied the motion, and
the defendant was thereafter convicted as charged. The court of appeals
affirmed.

In a majority decision authored by Justice Crooks, the supreme court
affirmed the court of appeals. The court concluded that a defendant
convicted of the crime of second or subsequent offense OWI, as the
defendant had been, is subject to the penalty enhancements provided for
in both the OWI statute and the general repeater statute, "so
long as the application of each enhancer is based on a separate and
distinct prior conviction or convictions" (¶ 36). The court said
that a careful reading of the general repeater statute reveals that the
plain language of section 939.62 does not exclude OWI offenses from the
category of crimes to which the habitual criminality statute may be
applied.

Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.

Municipal Law

Authority of Municipality to Acquire and Develop Private Property -
Public Purpose Doctrine

This case concerns a parcel of land along the Rock River that was
acquired by the town of Beloit and that the town seeks to develop into a
residential subdivision. The circuit court concluded that the public
purpose doctrine did not allow for such actions by the town.

The court of appeals reversed. It held that the town had statutory
authority to develop the land and that its goals in doing so constituted
a public purpose.

In a majority decision authored by Justice Crooks, the supreme court
affirmed the court of appeals. It held that the combination of the
town's enunciated goals of creating jobs, promoting orderly growth,
increasing the tax base, and preserving and conserving an
environmentally sensitive area for the benefit of town citizens
constitutes a legitimate and valid public purpose under Wisconsin
statutes and case law and the U.S. and Wisconsin constitutions.

At the heart of this dispute is the town's plan to expend tax monies
to develop and sell the land in question. The public purpose doctrine
commands that public funds be used only for public purposes. Courts are
to give great weight to the opinion of the legislative body. If any
public purpose can be conceived of that might rationally justify the
expenditure, the constitutional test is satisfied. Wisconsin
municipalities have traditionally been given wide discretion to
determine whether a public expenditure is warranted due to public
necessity, convenience, or welfare. As such, the public purpose doctrine
has been broadly interpreted.

Applying these principles, the supreme court held that the
combination of goals described above is a legitimate and valid public
purpose justifying the expenditure of public funds by the town.

Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.

Real Property

The O'Neills and Reemer owned adjoining land. A dispute erupted over
a strip of land that runs along the boundary between the two properties.
Although Reemer has record title to the strip, the O'Neills claimed
ownership based on adverse possession.

After Reemer permitted Weyerhaeuser to log the strip, the O'Neills
brought this trespass action against Reemer and Weyerhaeuser. Relying on
Shelton v. Dolan, 224 Wis. 2d 334 (Ct. App. 1998), the trial
court ruled that the adverse possession claim ripened in 1964, and that
therefore the 30-year period set forth in Wis. Stat. section 893.33(2)
ran between 1964 and 1994. Because the O'Neills had not recorded any
instruments or notice of claim before 1994, their claim was barred as of
1994.

In the alternative, the court ruled that because a fence was
constructed in 1944, issues of fact existed that precluded summary
judgment for either party. The court of appeals affirmed the circuit
court based on Shelton, but acknowledged "questions regarding
the validity" of Shelton's construction of section 893.33 that
only the supreme court could clarify.

The supreme court, in an opinion authored by Justice Bradley,
reversed and remanded. The supreme court expressly overruled
Shelton because it misinterpreted and misapplied earlier cases
and "draws a line that is neither required by the language of Wis. Stat.
§ 893.33(5) nor supported by sound policy" (¶32).

The court "reaffirmed" prior cases to the effect that "the
owner-in-possession exception to the 30-year recording requirement
applied to adverse possession claims" (¶37). To hold otherwise
would mean that "one who has adversely possessed property for over 50
years would not be able to claim title while one who has adversely
possessed property between 20 and 50 years would be able to do so. In
addition, adverse possession claims sometimes involve situations in
which the parties are operating under the belief that the adverse
possessor has record title to the property that is being possessed. It
is therefore illogical to create an expectation that the adverse
possessor make a filing of record before the incident prompting the
lawsuit arises" (¶31).